36 F. 541 -

36 F1d 541

class="ad-unit">

Case Text

CHOTEAU V. HARVEY.

541

of the present case, for if it be conceded that the coupons payable January 1, 1888, were presented before the expiration of the days of grace, it suffices to enable the plaintiff to recover that those payable Jnly 1, 1887, were also presented January 2, 1888. The holder of commercial paper is not required in an action against the maker or acceptor to aver or prove presentment, but it devolves upon the maker to show non-presentment as matter of defense by proof that he was ready to pay the paper at the time and place of payment, and was always ready afterwards to do so. Foden v. Sharp, 4 Johns. 183; Wolcottv. VanSantvoord, 17 Johns. 248; Wallace v. McConnell, 13 Pet. 136. The same rule applies to actions upon coupons. Walnut v. Wade, 103 U. S. 683. It does not follow, however, that it is not incumbent upon the plaintiff to make presentment of the coupons in order to charge the defendant with a breach of the condition in question. By the terms of the bonds the default of 90 days in payment of interest, by which the whole principal is to become'payable immediately, is a default in the payment "when such interest shall become payable, and be demanded." This language makes the default depend upon a 'precedent demand of the interest. It does not require a demand to be made on the very day the interest becomes payable. It means that the obligor shall not be liable beyond the amount of interest due until a specific demand of the interest is made by the bondholder. If the bondholder does not demand the interest, he can, nevertheless, maintain an action upon the coupons, which can only be defeated by proof on part of the obligor that the coupons wonld have been paid at any time upon presentment at the proper place. If he does demand payment of the interest when it becomes due, or at any time thereafter, the demand implies that he intends no longer to waive his rights, but insists'upon the strict fulfillment of the condition. Upon this construction of the contract the 90 days commenced to run January 2, 1888, as to the July interest previously due. The demurrer is sustained.

CHOTEAU 'V. HARVEY. SAME

v.

UNION PAC.

Ry.

Co.

«(Jircuit Court,

1.

w: n. Mi88ouri, w: n.

November 9, 1888.)

DOWER-AssIGNMENT-LIMITATION OF ACTIONS.

An action for the assignment of dower is an action to recover real estate, within the meaning of the Missouri statute of H:l47, (Rev. St. Mo. 1879, § 3219,) and is barred by the 10-years limitation of that act.SAME-STATUTES-RETROSPECTIVE OPERATION. .

2.

The limitation law of 1847 was in force at the time of the adoption of the Missouri Code of 1849, and the provision of said Code (Laws Mo. 1849, art 2, p. 74, § 1,) that" this article shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statute now in force shall be applicable to such cases," etc., had reference to the limitation law of 1847, so as to bring within its purview an action for the assignment of dower accruing prior to its adoption.

642

. FEDHRALREPORTER.

. Actions .for the assignmellt of dower, instituted by Berenice F. Choteau against William Harvey and the Union Pacific Railway Company. Slaughter & ,Taylor, for plaintiff. . Karnes & KrauthojJ, for William Harvey. John W. Beebe, and Charles Monroe, for Union, Pacific Railway Company. Before BREWER, Circuit Judge, and PHILIPS, DisL·jot Judge.
PHILIPS, J.. This is an action for the assignment of dower. The plaintiff's husband is alleged to have died seizeU of theJand in qUE:'stion in 1838, at which time plaintilrs right of dower attached so as to have been asserted in thi!'! form of action,' had she chosen to do so. The above facts appearing on the face of the petition, the defendant demurred on the ground that the action was barred by the statute of limitations. The question.to be decided is, does the statute of limitations prescribed by the statute of this state apply to this action? .. Section 3219, Rev. St. Mo. 1879, declares that "no action for the recoverv of any lands, etc., or for the recovery of the possession thereof, shall be commenced, had. or maintained by aoy person, * * * unless it appear that the plaintiff, his ancestor, predeoessor, grantor, or other person, under whom he claims, was seized or possessed of the premises in question within ten years before the commencement of such action." This statute was enacted in 1847, and has continued in this form in the successive revisions to this date. It has long been a mooted question in this state as to whether or not this statute applies to the action for the assignment of dower. It, perhaps, is not too much to say that it was the prevailing opinion of the profession, based upon adjudications of the courts, that there is no statutory- limitation as to such action; but the que!'!tion has recently been reviewed and Q.'<ltermined by the supreme court of this state in the case of Robinson v. Ware, 94 Mo. 678, 8 8. W. Rep. 153, in which it is held that the action for assignment of dower is, in effect, an action to recover real eBtate, and is barred by the 10-vears limitation. It is important in relation to the question here presented to briefly advert to the argument and ground of that decision. It holds under the statute respecting the action for dower; where the widow, as in this case, shall be deforced 'thereof, that it is an aetion for the recovery of real estate, and that the action performs the double office of the allotment of the dower interest and of ejectment for the possession thereof; that the proceeding "comes literally within the words, 'an action for the recovery of lands, or for the recovery of the possessioa thereof.'" After alluding to the fact that under statutes prior to 1849 it was supposed that the statute of limitations did not apply to such actions, it is asserted that the practice act adopted in 1849 "abolished all distinctions between actions at law and suits in equity,and declared that thereafter there should be in this state but one form of action, which is denominated a 'civil action. '" This Cbde repeals certain sections of the Revised Statutes of 1845 concerning the limitation of personal actions, and substitutes others. It is then maintained that "this history of the legislation shows clearly

At taw.

ClIOTEAU tJ. HARVEY.

543

that it'was the policy of the legislature of 1849 to fix a period of limitation for all civil actions," and, of consequence, as dower iil a civil action, it mUdt subject to the operation of the 10-years limitation. The of action under cOTlsideratlOn, in that case, having accrued after the statute of 1849, was subject to its operation·. 'The federal courts, in construing state statutes, as a general rule, where no newly-acquired interests or rights have attached upon earlier rulings on the statute, will follow the .constructioll given by the higheilt courts of the statewhere such statute has been enacted. The plaintiff, while recognizing the binding force of this decision, undertakes to except from its operation this action on the ground that her cause of action accrued in 1838, long prior to the adoption of the limitation law of 1847 and the practice act of 1849. This contention rests upon the ground that in the act of 1849 (section 1, ari.2, p. 74; Laws Mo. 1849) it is expressly provided that "this areele shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statute now in force shall be applicable to cases, according to the eubject of the action, and without regard 1;0 the form." This exception has, in effect, been carried forward and incorporated in every succel"ding revision of the statute. The argument of plaintiff's coullsel is that, as prior to the act of 1849 there was no statute in force in this state placing any limuupon the right of action for assignment of dower, the right remained intact and wholly unaffected by any subsequent statute of limitations. It is to be conceded to this contention that t4ere a,re decisions in other jurisdictiolls which seem to support it. Libbett v. Maultsby, 71 N. C. 345; O'Mulcahy v. F1mf/l', 27 Minn. 449,8 N. W. Rep. 166. But, giving effect to the phraseology of the Missouri statutes, and the construction repeatedly placed thereon by the supreme court of the state, we do not feel at liberty to follow the cases cited. As already stated, the statute limiting real actions, in the form as it now appears in the latest revision, appeared in the laws of Missouri, 1847, p. 94, § 1, in an act entitled" An act to quiet vexatiolls)and litigation." That act contained no reservation saving the right of actions already commenced, or which had accrued; but it must be kept in mind that, according to the present holding of the supreme colirt in Robinson v. Ware, supra, the language of this statute, being the same as the present statute, did in its terms and effect cover the action Of dowel' as one" for the recovery of lands." Without stopping here to consider whether that statut.e would have applied to the plaintiff's cause of action. which had not then run 10 years, or whether she would have had 10 years thereafter in which to bring her action, it is sufficient to say that. this section of the statute of 1847 was in force at the time of the adoption of the Code of 1849, and that the language "but t!le statutes now in force shall be applicable to such cases" evidently had reference to the statute of 1847, which was in force at the time of the adoption of the act of 1849. It is true that, in Littleton v. PattfJ1'son,32 Mo. 357, the court held that the action for dower was not· barred by the act of 1847. No attention was given to the act of 1849 in this decision, but it was predicated solely of the act of 1847. The 10-

544

KEPORTER.

years limitation, when the action was brought,had not run under the act of 1849, but had run under the act of 1847, as the husband died January 4, 1849, and the suit was hegun Fehruary 23, 1859. It is not apparent to our mlnd, as !'uggested by counsel for plaintiff, that Judge BLACK, who deHvel'ed the opinion in Robinson v. Ware, concedes thatthe act of 1847 was rightly consl,ued in lJitueton v. Patterson, for he says: "We believe such an action would have been held to have been barred in the case of Littleton v. Patte1'son, supra, either by the first section of the act of 1847, or this general clause in the act of 1849, had the court been called upon to consider the statutes as Ilo whole." And it will be perceived that the whole line of argument in the opinion in Robinaon v. Ware was opposed to that pursued by the court in Littleton v. Patterson, predicated of the .constructi.on given to the statute of 1847, wh ich was supposed to have been modeled after the statute of Hen. VIII., and James 1., for the opinion says: " As a general rule. when we adopt a statute from another jurisdiction, we take it with the construction which has been given to it in that jurisdiction; but where one or more sections are formulated after these old English utes, we must construe our own enactments in the light of the whole body of our statute law upon the same general subject." The opillion then proceeds to show that, by the practice act of 1849, the scheme and policy of the act was to make the statute of limitations applicable to all civil actions, and the period of 10 years prescribed in the then existing law applicable to all actions for the recovery of real eState or any intorest therein. In the revision of 1855, which was re-enacted in 1857, (Laws Mo. 1856-7, pp. 76-80,) thi.s statute of limitations was continued, and the saving clause was expressed in section 15, art. 3, as follows: "The provisions of this act shall not apply to any action commenced, nor to any cases where the right of action or of entry shall have accrued before tbe time when this act takes effect, but the same shall remain subject to the laws then in force." In this form this provision continues in the statute to this day. ,Again,. however, itis contended, with zeal-and ability, on the part of plaintiff's counsel, that the expression "the same shall remain subject to the laws then in force" has reference to thA time when the cause of action accrued. On the part of the defendant it is contended that the word "then" has reference to the law in force at thetimewhen the act of 1855 \oak effect. This contention of defendant is, we think, well sustained, both upon the grammatical construction of the provision, as well as the repeated decisions of the supreme court. Judge SCOT'!." delivering the opinion of the supreme court in Callaway Co. v. NoUey, 31 Mo. 398, said: "The construction Pllt upon t he existing statute of limitations as to real ·actions is that, where ten years have elapsed from the taking effect of the act, tbe acttop is! barred. although it first accmed under some act of limitations which gave a longer period in which to bring it."

CHOTEAU

v.

HARVEY

545

This precise question came up for consideration and determination again in BiUion v. Walsh, 46 Mo. 492. After quoting said section, the court say: "What are the laws here referred to? The laws in force at the time the act took effect, or at the time the right of action accrued? The plaintiff assumes the latter position. and claims that her right of action accrued in 1832. upon the death of Connell, when the limitation act of 1825 was in force, giving twenty years in which to SUe, after the removal of disabilities, and that this latter act is the one that fixes the rights of parties. The position assumed is not sustainable. It is at variance with the letter and spirit of the law. and the whole tendency of legislation on this sUbject for the last generation." After adverting to the various limitation statutes the court conclude by saying that the term "then" in section 15 of the act of 1855 "is the law in force at the time of its enactment, [and is] to govern when the right of action had then already accrued. * * * The legislature, not wishing to disturb the law of 1847, instead of enacting that the law of 1845 should govern in cases where the right of action had then already accrued, enacted that the law in force at the time the revised act should take effect should apply to and govern such cases. The law of 1847 was then in force, and consequently must control in all cases where the right of action had accrued at the time the subsequent act went into operation, provided the period limited in the act had run after its passage." So BLISS, J., in Gilkerv. Brown, 47 Mo. 110, 111, held that said section 15 "can have no reference to any acts of limitation beyond the act of 1847." Evidently for the reason that that law was then in force. We have not overlooked the line of decisions cited by counsel holding tbat, where the statute of limitations in force at the time the cause of. action accrued gave, for instance, 10 years in which to bring snit, and' the subsequent statute shortened the period, the former period of 10 years was secured to the party by virtue of the saving clause in said section 15. Neilson v. Chariton Co., 60 Mo. 386; Abernathy v. Dennis, 49 Mo. 469; School Directors v. Goerges, 50 Mo. 194; McCartney v. Alderson, 54 Mo. 320. The holding in these cases comes clearly within the construction already given to said section 15, as the statute under which the causes of action accrued in those cases was the statute or law in force at the time of the enactment of the new statute. It is a non sequitur, however, that as, at the time the plaintiff's cause of action arose, there was no statute of limitation as to the action for assignment of dower, the right remains unlimited by reason of the saving provision of said section 15. As already attempted to be shown, the act of 1849, having declared, in effect, that all civil actions for the recovery of land, which includes the action for dower, shall be subject to the limitations now imposed by statute, i. e., the statute of 1847, the legal effect was the same as if, in 1849, the legislature had in express words declared that causes of action for the recovery of dower interests accrued anterior to 1849 should be subject to the period of limitation prescribed in section 1 of the act of 1847. It may be conceded to plaintiff's contention that the act could not be 1'etroin its operation under the state constitution. It was so far prov.36F.no.9-35

546

FEDERAL REPORTER.

spectivein its effect as to allow to the party whose cause of action arose prior thereto 10 years from the date of the statute in which to bring her action. This position is fortified, we think, bytne authority cited by couDsel, Sayre v. Wisner, 8 Wend. 661. The legislature having enacted that a widow should demand her dower within 20 years after the death of her husband, it was held that the limitation did not apply where the husband died previous to the new statute going into effect. Bt- t at the same time it was held to be "strictly within the reason of the rule of construction above alluded to to say that it may be applicable to cases of previous death, but not till twenty years after the statute takes effect." The plaintiff in this case at bar has slept upon her rights nearly 30 years sinc.e the act of 1849, and, while the conclusion reached in this opinion is not freefrom doubt, it seems to us to accord with the recent decision of the supreme court in Robinson v.Ware, and other cases citedj and, so holding, the, demurrer to the petition is sustained.
BREWlm,

J., concurs.

In re

RISCH.

(Diltrict Court, E.

n.

Texas. 1888.)

1.

EXTRADlTION-INTERNATIONAL-EvIDENCE 011' CRIME.

Under the treaty between the governments of the Germanic confederation and the United States, made in the year 1852, providing for the extradition of criminals, which stipulates for ,the delivery of persons charged with crime upon such evidence of criminality as, according to the laws of the place where the fugitive ill found, would justify his apprehenSIOn and commitment for trial, if the crime had there been committed, it is sufficient that a prim/ljacis case be made. such as, in the absence of explanation, would justify conviction, or such evidence as, in case of trial and conviction thereon, would sustain the verdict. '

t.

SAME-HOMICIDE-MURDER.

Upon application for the extradition of prisoner as a fugitive from Germany, charged with murder, it was proved that prisoner was a near neighbor of deceased, knowing his financial condition; that deceased was on the day prior tohis disappearance engaged in moving his property to prisoner's honse, to leave it in his charge during an intended journey, and to prevent seizure by creditors; that he was last seen in night at prisoner's house with him and his sons; that a servant sleeping in the'house was awakened by sounds indio eating the use of violence tO,and the distress of, a human being; that there were opportunities for thll r,emoval of the body from the house to a forest, where, eight months after,jtwas found, bearing indubitable marks of death by violence, and that such death· occurred about the date of disappearance; that prop'erty of deceased known to have been in prisoner's possession never was for; that deceased had a considerable sum of money, which there was evidence to indicate was in prisoner's possession; and that, in a few days after deceased's disappearance, prisoner unexpectedly left for Amer· ica, where he purchased a home. spending money, but not as much as he was supposed to have obtained from deceased, livin!; frugally with his family, bearing a good reputation, but going under an assumed name, until his ar·

IN BE Br8(,1I.

547

rllPt. Held. that under the treatr with Germany of '1852, a.nd statntesof the Unit,ed States extradition, tie evidence was sufficient to hold the prisoner for dtllivery to the German authorities. '

At Law. Application for extradition of Ludwig Risch, Rischkee, or Ludwig Rischky. M. E. Kleberg, for the German Empire. Burna Burns, for

ant.

SABIN, J. The defendant and one Louis Risch, alias Rischkee, or Rischky, are charged with the murder of Franz Schmalinsky, allegedto hl1ve been committed by them on the 23d day of April, A. D. 1883, at Griesel, in the district of Crossen, in the kingdom of Prussia, in the empire of Germany, to which he has pleaded not guilty; and his extradi.. tion is sought for the trial thereof under the treaties of 1852 between the United States and Prussia and other states of the Germanic confederation, and in pursuance of the laws of the United States for extradition. The first question presented for my decision is as to whether a person may be extradited upon a prima facie showing; and it is claimed that the presumption of law as to a man's innocence is a stand-off as against a prima facie showing of guilt. This might be so, and would probably be so acted on, where the 'prima facie showing was light; but when the evidence not only creates the presumption of guilt, but creates such a volume of strength, from the evidence, of the guilt of the party charged that it would seem unreasonable to SUPPOSA such party innocent, then, in such case, it would seem the plain duty of the magistrate to make the order for holding for extradition. The treaty provides for extradition "upon such evidence of criminality, as, according to the laws of the place where the fugitive is found, would justify his apprehension and commitment for trial, if the crime had there been committed." And, further, that" if on such hearing the evidence be deemed suffident to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority." I take it that this lattercJause requires thejudge to be satisfied that the evidence before him is sufficient to sustain the charge were the same on trial before him. If a verdict of gLilty were rendered upon the evidence, would he feel it his duty to set it aside? That seems to me to be the reasonable rule. In other words, the evidence should be such as to fairly prove the charge, and caB upon the defendant to explain the facts adduced, and without which explanation the charge would stand proven. I think that is the rule by which I should be governed in the decision of this case. In 1883 there were three mills on the Griesel river, in the kingdom of Prussia, known as the "upper mill," the "middle mill," and the "lower" or "back mill." The defendant was the proprietor of the middle mill, and afterwards his son, Louis Risch; while the deceased wasthe proprietor of the lower or back mill. These mills were in a thickly-settled country, and near which were several villages and good-sized towns, and near there was a forest on the Bentnitz road" known as a "fir preser,ve." ,It

548

FEDERAL REPORTER.

was for the growtb and preservation of these trees. Franz Schmalinsky, the deceased, on and prior to April 22, 1883, was an industrious andenterprisingmiller, and at times thrifty, and enjoyed the confidence of those with whom he dealt to a considerable extent; but in the spring of that year he became embarrassed to a great extent, and availed himself of the confidence he enjoyed to obtain money, as alleged, by forgeries, and also by converting many of his available assets into money, and unquestionably had in hand from $1,600 to $3,000, probably in the neighborhood of $2,500; but as his creditors would soon likely be upon him with writs, and as the supposed forgeries might soon come to light, he took one further step of transferring all his available means, household furnihue, cattle, horses, buggies, and hay to the defendant, and, with the except i on of a load or so of hay, the whole of those things were removed to the house and mill of the defendant, as early as April 22, 1883, in which both parties took part, and engaged in the transfer and removal with an energy that showed that time was an important element of the transaction in hand. The 22d was on Sunday. Among the things so removed was a large-sized fir wardrobe, capable of holding a man inclosed therein; and when it was moved over to defendant's, a distance of about threequarters of a mile or less, one witness says it was full of clothes, aud another that it contained all of the best clothes of the deceased. That the deceased contemplated a movement of some kind is evident, not only from these facts, but from the fact that he had frequently announced his intention ofgoing to Poland to buy cattle. He had made such trips several times before in previous years. In the afternoon of the 22d he sent his servant, with his money satchel, to defendant, informing his servant that it contained money, and to deliver it to defendant, which she did, but whether it contained any money or not was unknown to witness. Some time early in April the defendant recalled from service in a neighboring place one of his daughters, with the view of keeping house for his son Louis, at the mill, and \ in whose name the mill property stood. She reached home April 3, 1883, and some seven days prior to April 23. 1883, that being the day of the tragedy, defendant engaged tickets for himself, wife, and four children, one of them, his ward, being also a child by adoption, he paying say $20 thereon by way of earnest money to secure the tickets, the vessel being to sail about the 29th or 30th of April, whereupon the ticket agent, as was his duty, gave notice of such transaction to the local police. The defendant left his home for the steamer on the 29th of April, 1883, and for America, with all of his family above stated, leaving only his son Louis and a daughter remaining at the mill, which stood in the name of Louis, who had recently returned from a three-years service in the army. The defendant and the five members of his family arrived in America in due course, reaching San Antonio, Tex., from New York, by "ail, where he bought a lot shortly after his arrival, paying $200 down and the balance of $300 on time, and erected by himself a small shedhouse, and afterwards, by arrangement with a building association, a larger and more comfortable dwelling, in all, however, not exceeding in

IN RE RISCH.

549

present value the sum Of from $1,500 to $2,500 for lot and improv&ments. His life has been frugal, and he has maintained good habits, and is well esteemed by all who know him in San Antonio, Tex. His name in Germany was Ludwig Risch, and he was so known. On coming to America he claims an additional given name, "Martin." He also changed his name from" Risch" to "Rischki," and signs his name" M. Ludwig Rischki." Since here he has been overwhelmed by misfortnne in the loss by death in 1883 of his son Otto, and afterwards by the death of his wife, and also of his daughter Anna. In October, 1883, his daughter left by him at the mill left for America, and joined him at San Antonio, and afterwards his son Louis did likewise, his daughter, however, coming first, and alone. His daughters went at once to service, and have contributed to his aid in living and acquiring the homestead; and such was the case up to the time of the arrest herein, on which day the one last arriving here was to have been married. The property of Schmalinsky, moved over to defendant's mill, was left there by defendant, in the hands of his son Louis, and was mostly taken back by Mrs. Schmalinsky or redelivered to her. There was one notable exception; however, and that was the clothes of Schmalinsky. When the wardrobe came back through the aid· of her former guardian, it was empty of clothing. It is time now to go back to the mill, and review the tragic occurrences of the 23d of April, and those connected therewith. The middle mill, defendant's residence, was a large stone building, with one roof covering the mill and the dwelling. It was two stories, with a hall in the center above, which was reached from below in front by means of steps. On the left side of thE: hall, in the upper story, was the residence of defendant, with a door entering from the hall into the sitting-room, behind which was the sleeping-room and a pantry. On the right-hand side of the hall was the mill used for grinding grains and all the business .incident to the mill. Over all this was a garret, where persons en. gaged in the mill sometimes slept. The door on the right-hand side entered into the mill, while that on the left entered into the sitt.ing-room. Below the mill, hall, and residence portion, or on the lower floor, was a kitchen, and what was called a "mill-room," used for grinding linseed, and making oil, wherein also was an oven, and it was also used for a sleeping-room for defEmdant's sons Louis and Otto, and claimed by the witness Brunzel to have been the place where he slept. On Sunday, April 22, 1883, everything was made lively at the lower mill and at the middle mill by the parties and their servants in moving Schmalinsky's things and chattels to the middle mill. The defendant and his servant, August Brunzel, as well as several members of defendant's fumily, were busy in hauling·or receiving things. In the night of that. day, say 10 P. Y., the deceased was seen by his wife for the last time, in her bedroom, and in the presence of defendant, and no mention of any imm&diate departure was spoken of. Later on the last load was hauled that night, and there was attached to the load or wagon the buggy of the d&ceased, to be hauled to the defendant's mill; and while so proceeding, Brun.-

550

FEDERAL REPORTER.

zel driving, the deceased was seen by Brunzelwalking behind and talking with defendant about the sale of his things to him, but was missed by Brtmzel about the time they reached a point of the road near the fir cannot preserve. Brunzel, Risch, and his son Louis or state which-proceeded on to the house of defendant, where the horses were unhitched, Risch directing them to be fed, and informing Brunzel that they would have to start early again in the morning, at 3 A. M., in order to get another load of hay, so as to get in ahead of others, the creditors of deceased; after which the defendant, Risch, went into his sittingroom. There was a light burning. It was usual to burn a light all night in that room. Just after the horses were unhitched, Bruniel saw a man coming across the meadow from the direction of the Schmalinsky mill towards the rear of the house of defendant, and witness stopped and looked and soon saw the deceased come up. who accosted him, and went on up into the mill by the back stairs, towards the dwelling of Risch. Defendant and' several members of his family had been in the sittingroom a few moments before. This was about 1 A. lIL, and was the last ever seen of deceased alive on this earth. Brunzel went into his sleeping plaae under the house to bed, and went to sleep for a half hour, or perhaps an hour, when he was awakened by noises overhead as if the moving of furniture, and the stepping of men with boots on, and the gargling or rattling sound as if of some one in the last gasps of death; but after a little he went to !Sleep again until he was awakened in the morning about 4 A. M. by defendant, who claimed to have overslept himself, when they went to the lower or back mill for another load of hay, and found others already there on the same mission, but the deceased was missing, and defendant informed witness that deceased had gone to Poland to buy cattle. But on the next day, and afterwards, defendant claimed, not only to Brunzel, but to others, that deceased had gone to America, and would never come back; and also stated to some one that he was a bad man to have left his wife in that way. It was generally supposed and believed that deceased had gone to America until January 31, 1884, when his body was found in a thicket of the "fir preserve" in the rear of his former residence and mill, dead, and his body in such a state of decay as was consistent with the time of his disappearance and finding,-his head off, four front teeth out of the upper jaw I also corner tooth, without 'watch or ring or other valuable, and in his ordinary miller's clothes, such as he wore in life. His skull had been fractured, and bore the impress of a heavy blow by some hard instrument, which left a blood-stain in the bone of the skull, showing that the blow had been struck while he was in life, and of a character that would have caused death. Now who did it? His life was gone, his money was gone, and his clothes were gone. Who took thf'm away? He was last seen in the very early morning entering defendant's mill, in which defendant then was. The defendant was in possession of his money satchel; what became of it? The wardrobe contained all his clothing; what became of them? Can the mind lead up to any other conclusion than t.hat he was killed at defendant's.mill by his aid and as-

IN BE RISCH.

551

sistance, at least, on the moming of the 23d of April, 1883? My niind is led to that conclusion. And I might stop here and close, but there are many other facts in evidence that, while they have relevancy to the foregoing, yet they relate more to theories of how the body was removed than fully proving that it was done in any given way. It is sufficient for the purposes of this investigation that the evidence shows that the body or person of the deceased was removed from defend;. ant's house, and that defendant and his confederates, one or more, had ample means and opportunity for so removing it. The defendant had the team and buggy of the deceased, as well as his own, with which he could have removed him or it, between the time when BrunzeLheard the noise and gargling sounds· and when he was called at 4 in the morning. Again, it was possible that the deceased was stuffed in the wardrobe with his clothes, and taken off in that on the 24th or 25th. The testimony on that subject is that on tpe 24th or 25th defendant ordered Brunzel and his son Louis to help load the wardrobe upon awagon, and that Brimzel remarked that it was very heavy, and that defendant replied that it was certainly heavy; that defendant said he was going to. take it to Bentnitz, to some one to whom he had sold or was· going to sell it, and that defendant and Louis drove off with it on that road, which would be the proper "ne to take to reach the place where the body was finally deposited, as well as the one which led to Bentnitz; and that, after a brief period, but long enough for them to have gone to Bentnitz and retarn, they returned with the wardrobe, and, by the aid of the witness, returned it to the place where it had formerly stood in the sitting;. room; that Brunzel noticed that it was still heavy, but whether lighter than before he could not state. While this shows that the body might' have been so moved, yet it does not prove tL:tt it was so moved. The wardrobe wall locked when moved. Whether it waBlocked when brought to the defendant, is not shown. When returned to Mrs. Schmalinsky, it was empty. I might allude to the fact that defendant exhibited a amount of money in the presence of Mrs. l£rnestine Deckert,' and of his son Louis, as she believes, before leaving for America, which, while it shows that he had money, yet its exhibition openly would perhaps indicate innocence, rather than guilt. As to the stenches smelled in the house about the 8tl} of May, they indicate nothing as to the body; and if they relate to the burning of the clothes,-of which there is no evidence,-they are too remote and indefinite, and so also of the blood-stains found in the house. . The only solid facts with which I have to deal are Lllat just prior to the killing defendant was acquainted with the financial condition and embarrassments of the deceaseil, and aided him therein; that deceased came to defendant's mill, after midnight, and in the early morning of April 23, 1883; that defendant was there, also some members of his family; that shortly thereafter unusual noises were heard in tIle residence portion of defendant's dwelling, as of moving of furniture, the stepping of men with boots on, and the gargling sounds as of some one in the gasps of death; that deceased disappeared, and was no more heard of

552

FEDERAL REPORTER.

untn his body was found January 31 l 1884, in a "fir preserve" situated without, but to the rear of, the mill of the deceased, and in a state of dE'composition consistent with the length of time of its disappearance and surroundings; that on the morning of the disappearance, and before the awakening of Brunzel by defendant, defendant had ample time and means to remove the body to the "fir preserve," where it was found; that defendant had possession of tne money satchel of deceased, and also of all his clothing contained in the wardrobe; that deceased had considerable money on hand, whether in his satchel or elsewhere; that the clothing, satchel, and money have not been heard of since the disappearance of the deceased, and that deceased was found dead as the result of a heavy blow on the skull; that his body was identified; that defendant had taken steps to remove to America shortly previous to the murder; that on the occasion of the murder he was aided by one or more co-principals; that defendant left for America quietly, and that his leaving was not generally known; that it was in the' nature of a sudden disappearance; that he had money to reach San Antonio, Tex., and pay $200 on land; that defendant was seen with a considerable amount of money shortly before he left, exhibited by him to Mrs. Ernestine Decker, in presence of his wife, and against his wife's remonstrances, and in the presence also of his son Louis, as Mrs. Decker believes. I might state here that I have not disregarded the attempted contradiction of-th-e witness Brunzel as to his sleeping-place; but whether he had a sleeping-place at the stable, or one which might have been used as such, yet I am satisfied that, as his evidence is supported in so many different instances by other witnesses upon different subjects, as well as by the certificate of the judge, together with the explanation of the witness as to the little importance attached by him at the time to the noises heard by him, and to his fear of heing suspecteu. himself, that I aUl incHned to, and have given entire credence to, his statements. Without referring to the numerous other matters presented by the evidence, I am convinced that the evidence is sufficient to sustain the charge made against the defendant herein, Ludwig Rische, alia8 Rischkee. or Rischky, by Julius Runge, consul for the German empire, that said Risch, alias Rischkee, or Rischky ,had committed the crime of murder ofand upon one Franz Schmalinsky, on the 23d day of April, 1883, at Griesel, in the district of Crossen, in the kingdom of Prussia, in the empire of Germany, and within their jurisdiction and government. and deem the same amply adequate and sufficient to sustain the said charge under the provisions of the treaty between the United States of America and Prussia, and of uther German states, parties thereto, of date June 16, 1852, and of that of November 16,1852, and that Prussia is now a part of the German empire; and I therefore order and adjudge-; and it is ordered and adjudged by me, that the said Ludwig Risch, n,li{/,8 Rischkee, or Rischky, be held in custody by the marshal of the United States of America for the Eastl:'rIl district of Texas, and confined in the county jail of Galveston connty, Tex., for extradition, in accordance with said treaties and the laws of the United States, as contained in the Revised Statute!? 0f the

IN RE WY SHII\G.

553

United States, tit. 66, "Extradition," pp. 1021-1023, and that a warrant issue to carry this order into effect; and that the evidence, or a copy thereof, be immedi.ately, or as soon as may be, transmitted to the secretary of state of the United States, to the end that such action may be had by him in the premises as justice may require. And it is so ordered.

In re Wy ln re

. «(Jif'6ult (Jourt,

SRING.

WONG GAN·

N. D. Oalifornia. November 8, 1888.)

.1.

CHINESE-CHILDREN BORN IN UNITED STATES-CITIZENSHIP-FoURTEENTH AMENDMENT.

A person born in the United States of Chinese parents residing therein. and not engaged in any diplomatic or official capacity under the government of China or other foreig-n power. is born snbject to the jurisdiction of the United States, and he is a citizen thereof, under the fourteenth amendment to the national constitntion'! The Chinese restriction acts of 1882 and 1884, and the exclusion act of1888, are not applicable to citizens of the United States, though of Chinese parentage.!

2.

SAME-ExCLUSION ACTS-CONSTRUCTION.

8. .

No citizen can be excluded from the United States, except in punishment for crime. (Syllabus by the Oourt.)

CONSTITUTIONAL LAW-RIGHTS OF CITIZENS.

Habea8 CorpU8. Wy Shing was born in San Francisco, Cal., of Chinese parents, who had intermarried at Marysville, in the state of California. After his birth petitioner's parents returned to Marysville, where his mother died when he was three years old. When petitioner was six years old hi,8 fathersent him to China in charge of an elder brother of the father, where he remained till thirteen years old, when he returned to California. In 1885 he went to China again, and remained there till September, 1888, when he took passage a second time for California, before the passage of the late exclusion act. He arrived at San Francisco October 7,-1888, after the approval of said exclusion act, on October 1, 1888. The collector refused hin1 permission to land, on the ground that he was a Chinese laborer, who had departed from the country, and that he was prohibited from returning by the provisions of said act. His father was, and he still is, a laborer, and he was in no way in the service of .peroror government of China at the time of the birth of petitioner or at any other time. . He still resides in California, and he has never been baGk to China or left the state of California since the. birth (If petitioner.
ante. 437.